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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NOS. 8609-8610 OF 2009

Om Prakash Sharma @ O.P. Joshi         ... Appellant (s)

Versus

Rajendra Prasad Shewda & Ors.              ...    Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

1.    The  suit  property  comprises  of  land  and  building  

covered by holding No. L-395 on the Thana Lane within the  

Purulia Municipality, District Purulia, West Bengal.

2.  The following genealogical table may be set out for ready  

reference and clarity of the facts that will  be required to be  

noticed.  

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Jagannath Joshi =    Moni Debi                      (Died October 1953)          (Died August 1963)

____________________________                             │                                             │      Brijlal Shewda = Gomati Debi           Sitaram Joshi=Kishori Debi Joshi                            (Daughter)     (adopted son-1942)  (Original plaintiff)                             (Died 1967)               (Died 1946)         (Married to Sitaram in 1945)

   (Since deceased) │ │

     Rajendra Pd. Shewda                       Om Prakash Sharma @ Joshi       (allegedly adopted son)                     (adopted son)       (Respondent No.1)                            (Petitioner No.1)      

3. According  to  the  original  plaintiff,  Kishori  Debi  Joshi,  

(since  deceased),  the  suit  property  was  purchased  by  

Jagannath Joshi with his funds in the name of his wife Moni  

Debi.  Moni  Debi,  according  to  the  plaintiff,  was  the  name  

lender though in the Municipal and Land Revenue records  the  

name  of  Moni  Debi  was  entered  as  the  owner  of  the  suit  

property. The said entries were a mere pretence. The plaintiff  

further pleaded that she is the wife of one Sitaram Joshi who  

was adopted by Jagannath Joshi and Moni Debi in the year  

1942. After the marriage of Sitaram Joshi and the deceased

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plaintiff  Kishori Debi Joshi in the year 1945, Sitaram Joshi  

died a few months later. According to the plaintiff, Jagannath  

Joshi the owner of the suit property died in the year 1953 and  

on his death, one half of the suit property devolved on his wife  

Moni Debi and the remaining half on the deceased plaintiff as  

the widow of the predeceased son. The plaintiff further pleaded  

that Moni Debi died in the year 1963 and on her death her  

half  share  in  the  suit  property  devolved  on  her  daughter  

Gomati Debi. On the death of Gomati Debi in the year 1967  

her  half  share  in  the  property  devolved  on  the  

original/deceased plaintiff  Kishori Debi Joshi.   Accordingly,  

the  plaintiff  became  the  absolute  owner  of  the  entire  suit  

property.  In  this  regard,  the  plaintiff  further  pleaded  that  

respondent No.1 Rajendra Prasad Shewda who claimed to be  

the adopted son of Gomati  Debi had no basis to make any  

such claim as no such adoption took place.

4. The defendant,  in the written statement filed, disputed  

the claim of  the plaintiff  and asserted that  though the suit  

property was purchased with the funds of Jagannath Joshi the

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said purchase was made for the benefit of Moni Debi in order  

to provide her with the necessary security in life as at that  

point of time a Hindu widow was not entitled to full ownership  

of  property owned by a Hindu male following his death. The  

defendant also disputed the claim of the original plaintiff that  

Sitaram Joshi was the adopted son of Jagannath and Moni  

Debi and in this regard had asserted that there was no valid  

adoption, as claimed. According to the defendant on the death  

of Moni Debi in August 1963 the entire property devolved on  

her daughter Gomati Debi and upon the death of Gomati Debi  

the property devolved on the defendant No.1 Rajendra Prasad  

Shewda  who  was  the  adopted  son  of  Gomati  Debi.  In  this  

regard the defendant had also pleaded that a gift  deed was  

executed by Gomati Debi during her life time in favour of her  

adopted son i.e. defendant No.1.  

5. The learned trial court, on the evidence adduced before  

it, took the view that the property belonged to Jagannath and  

that the adoption of Sitaram Joshi, predeceased husband of  

the  original  plaintiff,  was  legal  and  valid.  The  learned  trial

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court, therefore, held that on the death of Jagannath Joshi in  

1953 the suit property devolved in equal proportions on Moni  

Debi  and  the  original  plaintiff  who  was  the  widow  of  the  

predeceased  son.  Thereafter,  according  to  the  learned  trial  

court, on the death of Moni Debi her half share in the property  

devolved on Gomati Debi. The trial court further held that on  

the death of Gomati Debi in the year 1967 her half share in  

the  property  devolved  on  her  adopted  son  defendant  No.1.  

Accordingly, the plaintiff as well as respondent No.1 were held  

to be entitled to equal shares in the suit property.

6. The defendant No.1 appealed against the said order  to  

the  High  Court.  The  original  plaintiff  filed  cross  objections  

against the part of the decree which according to her denied  

her full share in the suit property. During the pendency of the  

appeal, the original plaintiff Kishori Debi Joshi died and she  

was substituted by her adopted son Om Prakash Sharma who  

is the appellant before us.

7. The High Court,  on an exhaustive consideration of the  

issues arising for consideration and the facts and materials on

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record, by the impugned judgment and order dated 4.11.2008,  

came to the conclusion that the purchase of the property by  

Jagannath was not a benami purchase and that Moni Debi for  

whose benefit the property was purchased was the real owner  

thereof.  The  High  Court  further  held  that  the  adoption  of  

Sitaram Joshi was not proved and therefore on the death of  

Moni Debi in 1963 the entire suit property had devolved on  

her daughter Gomati Debi. The High Court did not consider it  

necessary to go into the issue of validity of the adoption of the  

defendant No.1 Rajendra Prasad Shewda or the legality of the  

gift deed executed in his favour by Gomati Debi inasmuch as  

on the  death of  Gomati  Debi  in  the  year  1967 the  original  

plaintiff had no subsisting right to the property. In this regard  

it must be noticed that the said finding was recorded by the  

High  Court  on  the  basis  that  though  the  husband  of  the  

original plaintiff   Sitaram Joshi was not the adopted son of  

Jagannath Joshi, the said Sitaram Joshi was the nephew of  

Jagannath (brother’s son)  and as the wife of  the nephew of  

Jagannath the original plaintiff did not come within the arena  

of consideration of being a heir legally entitled to succeed to

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the property of Moni Debi.   This was so found as there were  

other  legal  heirs  who  had  a  better/preferential  right.  

Accordingly  the  appeal  filed  by  the  defendant  No.  1  was  

allowed  and  the  cross-objections  filed  by  the  plaintiff  were  

dismissed.  Aggrieved the present appeals have been filed by  

the plaintiff.   

8. Three  questions,  delineated  below,  arise  for  

consideration in the present appeals -

1)   Did the suit property belong to Jagannath Joshi or  

his wife Moni Debi?  

2) Whether Sitaram Joshi was the legally adopted son  

of Jagannath Joshi and Moni Debi.?  

3) Whether  defendant  No.1  Rajendra Prasad Shewda  

was  the  legally  adopted  son  of  Gomati  Debi  and  

whether the gift deed executed by Gomati Debi in  

favour of defendant No.1 was legal and valid?

9. We  have  heard  Shri  Pranab  Kumar  Mullick,  learned  

counsel for the appellant and Shri M.N. Krishnamani, learned  

senior counsel for the respondents.

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10. The purchase of property by a husband in the name of  

his  wife  is  a  specie  of  Benami  purchase  that  had  been  

prevalent  in  India  since  ancient  times.   Such  a  practice  

appears to have been prevalent on account of the position of  

Hindu women to succession until the enactment of the Hindu  

Succession Act and the amendments made thereto from time  

to time.   In a situation where a Hindu widow had a limited  

right to the estate of the deceased husband under the Hindu  

Women’s  Right  to  Property  Act,  1937,  the  purchase  of  

immovable property by a husband in the name of the wife in  

order to provide the wife with a secured life in the event of the  

death  of  the  husband  was  an  acknowledged  and  accepted  

feature  of  Indian  life  which  even  finds  recognition  in  the  

explanation clause to Section 3 of  the Benami Transactions  

(Prohibition)  Act,  1988.  This  is  a  fundamental  feature  that  

must  be  kept  in  mind  while  determining  the  nature  of  a  

sale/purchase  transaction  of  immoveable  property  by  a  

husband in the name of his wife along with other facts and  

circumstances  which  has  to  be  taken  into  account  in

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determining  what  essentially  is  a  question  of  fact,  namely,  

whether the property has been purchased Benami. The “other”  

relevant  circumstances  that  should  go  into  the  process  of  

determination of  the  nature  of  transaction can be found in  

Jaydayal  Poddar  (Deceased)  through L.  Rs.  &  Anr.  vs.   

Mst.  Bibi  Hazra & Ors.  1   which may  be  usefully  extracted  

below :-

“6. It  is  well  settled  that  the  burden  of  proving  that a particular sale is  benami and the apparent  purchaser is not the real owner, always rests on the  person asserting it to be so. This burden has to be  strictly discharged by adducing legal evidence of a  definite character which would either directly prove  the  fact  of  benami or  establish  circumstances  unerringly  and reasonably  raising  an inference  of  that fact. The essence of a benami is the intention of  the  party  or  parties  concerned;  and  not  unoften,  such  intention  is  shrouded  in  a  thick  veil  which  cannot  be  easily  pierced  through.  But  such  difficulties do not  relieve the person asserting the  transaction to be benami of any part of the serious  onus that rests on him; nor justify the acceptance of  mere conjectures or surmises,  as a substitute  for  proof.  The  reason  is  that  a  deed  is  a  solemn  document prepared and executed after considerable  deliberation, and the person expressly shown as the  purchaser or transferee in the deed, starts with the  initial presumption in his favour that the apparent  state of affairs is the real state of affairs. Though the  question, whether a particular sale is   benami   or not,    is  largely  one  of  fact,  and  for  determining  this  

1 AIR 1974 SC 171 para 6

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question,  no  absolute  formulae  or  acid  test,  uniformly applicable  in all  situations,  can be laid  down;  yet  in  weighing  the  probabilities  and  for  gathering  the  relevant  indicia,  the  Courts  are  usually  guided  by  these  circumstances:  (1)  the  source from which the purchase money came; (2)  the nature and possession of the property, after the  purchase;  (3)  motive,  if  any,  for  giving  the  transaction a benami colour; (4) the position of the  parties  and  the  relationship,  it  any,  between  the  claimant and the alleged benamidar; (5) the custody  of the title-deeds after the sale and (6) the conduct  of the parties concerned in dealing with the property  after the sale.

The  above  indicia  are  not  exhaustive  and  their  efficacy varies according to the facts of each case.  Nevertheless  No.  1  viz.  the  source,  whence  the  purchase money came, is by far the most important  test  for  determining  whether  the  sale  standing  in  the name of one person, is in reality for the benefit  of another” (Emphasis is ours)

11. The reiteration of the aforesaid principles has been made  

in  Binapani Paul vs. Pratima Ghosh & Ors.2.  The relevant  

part  of  the  views  expressed  (Paras  26  and  27)  may  be  

profitably recollected at this stage.

“26. The learned counsel for both the parties have  relied on a decision of this Court in  Thakur Bhim  Singh v. Thakur Kan Singh wherein it has been held  that the true character of a transaction is governed  by the intention of the person who contributed the  

2 2007 (6) SCC 100

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purchase money and the question as to what his  intention was, has to be decided by:

(a) surrounding circumstances,

(b) relationship of the parties, (c) motives governing their action in bringing about  the transaction, and (d) their subsequent conduct.

27. All  the  four  factors  stated  may  have  to  be  considered cumulatively.  The relationship  between  the parties was husband and wife. Primary motive  of  the  transaction  was  security  for  the  wife  and  seven minor daughters as they were not protected  by  the  law  as  then  prevailing.  The  legal  position  obtaining at the relevant time may be considered to  be  a  relevant  factor  for  proving  peculiar  circumstances  existing  and  the  conduct  of  Dr.  Ghosh which is demonstrated by his having signed  the registered power of attorney.”

12. Applying  the  aforesaid  principles  to  the  facts  of  the  

present case we find that the High Court was perfectly justified  

in  coming  to  the  conclusion  that  the  property  though  

purchased  from the  funds  of  Jagannath  was  really  for  the  

benefit of his widow Moni Debi and therefore Moni Debi was  

the real owner of the property. In this regard the entries of the  

name of Moni Debi in Municipal and Land Revenue records;

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the fact that the brothers of Jagannath were no longer alive  

(according  to  the  plaintiff  the  property  was  purchased  by  

Jagannath in the name of his wife to protect the same from his  

brothers) are relevant facts that have been rightly taken into  

account  by the  High Court.  The fact  that  the  property  was  

managed by Jagannath which fact accords with the practice  

prevailing  in  a  Hindu  family  where  the  husband  normally  

looks after and manages the property of the wife, is another  

relevant  circumstance  that  was  taken  note  of  by  the  High  

Court to come to the conclusion that all the said established  

facts are wholly consistent with the ownership of the property  

by Moni Debi.  In fact the aforesaid view taken by the High  

Court finds adequate support from the views expressed by this  

Court in  Kanakarathanammal vs. S.Loganatha Mudaliar  

& Anr.  3   the relevant part of which is extracted below :

“It  is  true  that  the  actual  management  of  the  property  was  done  by  the  appellant's  father;  but  that would inevitably be so having regard to the fact  that  in  ordinary  Hindu  families,  the  property  belonging  exclusively  to  a  female  member  would  also be normally managed by the Manager  of  the  family; so that the fact that appellant's mother did  not  take  actual  part  in  the  management  of  the  

3 AIR 1965 SC 271

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property would not materially affect the appellant's  case that the property belonged to her mother. The  rent was paid by the tenants and accepted by the  appellant's  father;  but  that,  again,  would  be  consistent  with  what  ordinarily  happens  in  such  matters  in  an  undivided  Hindu  family.  If  the  property  belongs  to  the  wife  and  the  husband  manages the property on her behalf, it would be idle  to contend that the management by the husband of  the  properties  is  inconsistent  with the  title  of  his  wife to the said properties. What we have said about  the management of the properties would be equally  true about the actual possession of the properties,  because  even  if  the  wife  was  the  owner  of  the  properties,  possession  may  continue  with  the  husband  as  a  matter  of  convenience.  We  are  satisfied  that  the  High  Court  did  not  correctly  appreciate the effect of the several admissions made  by the appellant's father in respect of the title of his  wife to the property in question. Therefore, we hold  that  the  property  had  been  purchased  by  the  appellant's  mother  in  her  own  name  though  the  consideration which was paid by her for  the said  transaction  had  been  received  by  her  from  her  husband.” (Underlining is ours)

13. On the basis of the above, we have no reason to disagree  

with the conclusion of the High Court that the property was  

owned  by  Moni  Debi  although  consideration  money  for  the  

same  may  have  been  made  available  by  her  husband,  

Jagannath.

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14. The next question to be decided is the legality/validity of  

the adoption of Sitaram, the husband of the original plaintiff,  

as claimed by the plaintiff in the suit. This Court, almost over  

5 decades back, had sounded a note of caution to be followed  

by courts while deciding a claim of adoption in the following  

terms :  

“As an adoption results in changing the course  of  succession,  depriving  wives  and  daughters  of  their  rights  and  transferring  properties  to  comparative strangers or more remote relations it is  necessary that the evidence to support it should be  such that it is free from all suspicion of fraud and  so consistent and probable as to leave no occasion  for doubting its truth.”4  

15. Reiterating the above view in  Rahasa Pandiani by L.  

Rs.  & Ors.  vs.  Gokulananda Panda & Ors.  5  ,   this  Court  

went on to further dilate on the matter in the following terms :

“When  the  plaintiff  relies  on  oral  evidence  in  support  of  the  claim that  he  was adopted by the  adoptive father in accordance with the Hindu rites,  and it is not supported by any registered document  to establish that such an adoption had really and as  a matter of fact taken place,  the court has to act  with a great deal of caution and circumspection. Be  it realized that setting up a spurious adoption is not  less frequent than concocting a spurious will, and  

4 AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai] 5 AIR 1987 SC 962

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equally,  if  not  more  difficult  to  unmask.  And the  court has to be extremely alert and vigilant to guard  against being ensnared by schemers who indulge in  unscrupulous  practices  out  of  their  lust  for  property. If there are any suspicious circumstances,  just as the propounder of the will is obliged to dispel  the cloud of suspicion, the burden is on one who  claims  to  have  been  adopted  to  dispel  the  same  beyond reasonable doubt. In the case of an adoption  which is not supported by a registered document or  any  other  evidence  of  a  clinching  nature  if  there  exist suspicious circumstances, the same must be  explained to the satisfaction of the conscience of the  court by the party contending that there was such  an adoption.  Such is  the position as an adoption  would  divert  the  normal  and  natural  course  of  succession.  Experience  of  life  shows  that  just  as  there have been spurious claims about execution of  a  will,  there  have  been  spurious  claims  about  adoption  having  taken  place.  And  the  court  has  therefore  to  be  aware  of  the  risk  involved  in  upholding  the  claim  of  adoption  if  there  are  circumstances  which  arouse  the  suspicion  of  the  court and the conscience of the court is not satisfied  that  the  evidence  preferred  to  support  such  an  adoption is beyond reproach.”

16. It  is keeping in mind the above principles that we will  

have to proceed in the present matter.  

17. The plaintiff herself alongwith one Rukmini Joshi (PW 2)  

are the witnesses who have testified in support of the claim of  

adoption  of  Sitaram  by  Jagannath.  The  testimony  of  the  

aforesaid two witnesses are sought to be corroborated by the

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statements of three other persons (since deceased) who had  

deposed  on  the  subject  in  another  suit  being  R.S.  

No.206/1967  filed  by  defendant  No.1  against  one  of  the  

tenants  in  occupation  of  a  part  of  the  suit  property.  The  

aforesaid three witnesses i.e.  Neth Ram Khedia,  Sib Prasad  

Rajgoria and Sadayee Devi have deposed in the aforesaid suit  

that Sitaram had been adopted by Jagannath.   

18. Besides  the  above  evidence  there  is  a  letter  dated  

20.7.1945  written  on  the  letterhead  of  M/s.  Bisandayal  

Ramjiwan (Exb.2) by one Jagannath Sitaram. It is urged on  

behalf  of  the plaintiff  that  the said letter  sent  from Purulia  

shows that Sitaram was the adopted son of Jagannath as the  

sender of the letter has been described as Jagannath Sitaram.

19. A consideration of the evidence of PW-2 Rukmini Joshi as  

a  whole  leaves  us satisfied that  in  view of  certain  inherent  

inconsistencies therein the testimony of the said witness is not  

worthy  of  acceptance.  Specifically,  PW-2 though had stated

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that  the  adoption of  Sitaram took  place 40 years back she  

could  not  recollect  her  own age;  she had no recollection of  

number of years prior to the adoption when she got married  

and was unable to recall when her sons got married and most  

surprisingly  the  age  of  her  elder  son  at  the  time  of  his  

marriage; the present age of the elder son or even the present  

calendar year. The evidence of the three witnesses examined in  

R.S.  No.  206/1967  (Ext.  17,  17A  and  17C)  would  be  

inadmissible  under  Section  32(5)  &  (6)  of  the  Evidence  Act  

inasmuch as on the date when the said evidence was recorded  

the controversy with regard to the adoption of  Sitaram had  

already occurred. The aforesaid question i.e. admissibility of  

the  evidence  in  question  would  stand  concluded  by  views  

expressed by this Court in  Kalindindi Venkata Subbaraju  

& Ors. Vs. Chintalapati Subbaraju & Ors.6 wherein in Para  

12 (quoted below), it has been clearly laid down that, “in order  

to be admissible the statement relied on must be made  ante  

litem  motam by  persons  who  are  dead  i.e.  before  the   

commencement  of  any  controversy  actual  or  legal  upon  the   

6 AIR 1968 SC 947

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same point.”  In the same backdrop the principle of ante litem  

motam  as  stated  in  Halsbury’s  Laws  of  England,  3rd Edn.  

Vol.15 p.308 has also been noticed.

“12. As  regards  the  written  statement  of  Surayamma the position of her declaration therein  is somewhat different. Both sub-sections 5 and 6 of  Section 32, as aforesaid, declare that in order to be  admissible the statement relied on must be made  ante  litem  motam by  persons  who  are  dead  i.e.  before the commencement of any controversy actual  or legal upon the same point. The words “before the  question  in  issue  was  raised”  do  not  necessarily  mean before it was raised in the particular litigation  in which such a statement is sought to be adduced  in evidence. The principle on which this restriction  is based is succinctly stated in  Halsbury's Laws of   England, 3rd Ed. Vol. 15, p. 308 in these words:

“To obviate bias the declarations are required  to have been made  ante litem motam which means  not  merely  before  the  commencement  of  legal  proceedings  but  before  even  the  existence  of  any  actual controversy concerning the subject-matter of  the declarations”.

20. The letter dated 20.7.1945 (Exb.2) does not lead to any  

clear/firm conclusion with regard to the adoption of Sitaram  

and  had  been  rightly  discarded  by  the  High  Court.  In  the  

above  conspectus  of  facts  the  evidence  of  the  plaintiff  

regarding  the  adoption of  her  husband stands isolated and

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cannot,  on  its  own,  sustain  a  positive  conclusion  that  her  

husband  Sitaram  was  adopted  by  Jagannath.  If  the  suit  

property was owned by Moni Debi and not by Jagannath and  

Sitaram was not the adopted son of Moni Debi and Jagannath  

it must be held that the suit property devolved on Gomati on  

the death of Moni Debi. The claim of the defendant No.1 to be  

the adopted son of Gomati could have been challenged only by  

such legal heirs on whom the property would have devolved  

following the death of Gomati in the event the adoption of the  

defendant No. 1 is to be held to be invalid. In this context, the  

next legal heir who would have been entitled to succeed to the  

property of Gomati Debi if the adoption of defendant No.1 is to  

be  treated  as  invalid  would  not  be  the  original  plaintiff  

inasmuch there was another heir who could have claimed a  

better  title  in  such  a  situation,  namely,  one  Chouthamal  

Sharma, the son of one of the brother’s of Sitaram.  No such  

challenge  was  made  by  the  aforesaid  legal  heir  who  had a  

better/preferential claim.

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21. In  view  of  the  above  position  demonstrated  by  the  

evidence on record the High Court was fully justified in not  

entering into the issue of validity of the adoption of defendant  

No.1 or the gift deed executed in his favour by Gomati as the  

said  issues  had  become  redundant/inconsequential  for  the  

reasons noted above.

22. For all the aforesaid reasons and in the light of what has  

been found and stated as above, we have to hold that these  

appeals are without any merit. Accordingly, the order of the  

High Court is affirmed and the present appeals are dismissed.  

However, there will be no order as to costs.   

..……..……......................J.                                              (RANJAN GOGOI)

….……..…….....................J.                                         (N.V. RAMANA)

NEW DELHI OCTOBER 9, 2015.